Judges Judging JudgesJudgment at Nuremberg
By Michael Asimow, UCLA Law School (August 1998)
Stanley Kramers masterpiece Judgment at Nuremberg (1961) stands alone as the finest film about judges ever made. In the film, four Nazi judges are placed on trial at Nuremberg before a panel of three American judges. Three of the German judges are Nazi thugs but one of them, Ernst Janning (played by Burt Lancaster), was quite different. Janning had been a famous and aristocratic legal scholar, a drafter of the Weimar constitution, and a man who detested Hitler and the Nazis. Yet he remained on the bench under the Third Reich. All defendants are convicted and sentenced to life imprisonment. The chief American judge, Dan Haywood (played memorably by Spencer Tracy), brushes aside the various excuses offered by defense counsel Rolfe (a role for which Maximilian Schell won an Oscar).
The Nuremberg war crime trials presented many thorny jurisprudential issues, such as the problem of ex post facto criminal law and the issue of how the court obtained jurisdiction over the defendants. In particular, what justification is there for an international (rather than a German) tribunal to try a case in which the offenses were committed by Germans against other Germans?
But the trial of the Nazi judges presented additional dilemmas. What of Rolfes argument that Janning remained on the bench in order to make the system of justice more merciful than it otherwise would have been? Certainly if Janning had resigned he would have been replaced by a more brutal official. Should this be a defense against charges that in some cases Janning had acted in a brutal and lawless manner? And what of positivismis it not the responsibility of the judge to carry out the laws of his country adopted by competent authorities, even if he disagrees with them? And what of independencecan a person serve as a judge when he is subject to the control or influence of non-judicial officials? And how about selective prosecutionthere were thousands of German judges. Why are these four being picked on?
Judicial independence was an issue for the American judges at Nuremberg as well. By the time of the trial, Haywood was under intense pressure to go easy on the defendants since the Cold War had begun. The Berlin Blockade was underway and higher concerns of foreign policy suggested that the Germans were now allies rather than enemies. In the film, Haywood resists these pressures and finds the defendants guilty based on a few cases they had judged. A judges responsibility, he declares, is to stand for justice hen standing for something is most difficult. At a recent talk I gave to a roomful of judges, the audience burst into spontaneous applause after hearing Haywoods judgment.
Judgment at Nuremberg is based on the third Nuremberg trial (there were a total of thirteen) . Charges were brought against sixteen functionaries in the legal systemjudges, prosecutors, and officials of the Ministry of Justice. They were by no means the worst offenders in the Nazi justice system, but the worst offenders were dead. Janning is a conglomeration of several actual defendants, including Franz Schlegelberger who was formerly undersecretary in the Ministry of Justice. Schlegelberger offered the defense that if he were to resign, a worse man would take his place. The Court thought there was much truth in this but convicted him anyway.
The key evidence against Janning was the Feldenstein case. Feldenstein was an elderly Jew convicted under the Law for the Protection of German Blood and German Honor for having sex with Irene Hoffman, a much younger Aryan woman (played by Judy Garland). Janning was the judge and he sentenced Feldenstein to death. At the Nuremberg trial, Janning conceded that he had decided to condemn Feldenstein even before the trial began, regardless of what the evidence would show. However, like everything else in the movie, the Feldenstein case presents serious issues. There was solid evidence presented at the trial that Feldenstein and Hoffman had a sexual relationship, even though they denied it and Hoffman continued to deny it at Nuremberg. Given that evidence, is it right to say that Jannings decision to find Feldenstein guilty was itself a war crime?
Hitlers Justice is a devastatingly well-documented book on the Nazi legal system by Ingo Muller. Written in 1991, this book discusses the entire legal system under the Nazislawyers, Bar Associations, law professors, judges, and prosecutors. Speaking of judges, Muller (at pp. 193-95) finds one judgejust onewho opposed the Nazis and spoke up against the prostitution of the judicial system. This judge, Lothar Kreyssig, was allowed to retire in 1942 and received a full pension. This suggests that other judges could have resisted the Nazisif they had wanted to. Muller also discusses the Nuremberg trial and domestic German trials against some of the judgesand recounts how all of them, judges and professors alike, were swiftly rehabilitated and got their jobs back. They then wrote many books and articles justifying their actions under the Third Reich.
Muller describes a case exactly like the Feldenstein affair (at pp. 113-15). It was the notorious Katzenberger case which was decided in 1942 by Oswald Rothaug, himself a Nuremberg defendant. Katzenberger was 67 years old, a pillar of Nurembergs Jewish community. He rented an apartment to Irene Seiler, who was thirty years old. The two were clearly good friends but they strongly denied any sexual relationship. As described by Muller, the evidence that a sexual relationship actually existed was much weaker in the Katzenberger case than in the fictionalized Feldenstein version presented in the film.
Muller has an extensive and horrifying chapter (Chapter 12) on the German blood protection statute. He shows how court decisions aggressively broadened the coverage of the law, both in defining who was a Jew and who was an Aryan, and in describing the circumstances that would violate the law. The judges and prosecutors enthusiastically enforced the law with the utmost brutality and the broadest possible coverage. The law covered considerably more than sexual contact; it also criminalized "dishonor to the race" which included kissing and even, in one extreme case, staring at an Aryan woman as she walked by on the other side of the street. While the blood protection law called for prison sentences rather than capital punishment, a violation of that law could be combined with other laws (such as the Habitual Criminal Law or the Decree on Asocial Elements) to produce the death penalty, as occurred in the Katzenberger case.
Another of Mullers chapters (chapter 9), which I found particularly disheartening, concerned the role of law professors under the Third Reich. All Jewish and Social Democratic law professors were quickly purged in 1933. This eliminated 120 of the 378 professors then working. The remaining professors tended to be extremely conservative. Younger men with the proper Nazi party credentials filled the openings. All of these professors (young and old) vied in writing books and articles that would be pleasing to the Nazis. They glorified Hitler, praised law by decree, vilified the ideas of constitutionalism and judicial independence, and called for ever-more brutal applications of Nazi laws and decrees. As Muller rightly puts it, all this scholarship "managed to disguise only with difficulty the fact that all of these [theories] meant turning back the clock and eradicating every trace of civilization and historical progress from German law."
The questions raised by Judgment at Nuremberg go to the core of what we do and what we are. What does it mean to be a lawyer, professor, or judge? Do we believe in positivism, natural law, legal realism? What do those philosophies require when one is a participant in the Nazi legal system? What if many judges had resisted the Nazis instead of pandering to them? Could the Holocaust have been prevented?
When should we follow the law and when should we resist it or twist it? When must a judge resign rather than carry out an immoral law? How about laws that require a life sentence for stealing a box of Pampers (like Californias three-strike law) or decades in prison for trivial drug offenses (like the federal law on crack cocaine)are these as wicked and illegitimate as the German blood protection law? Every judge, lawyer, law student and law professor should see Judgment at Nuremberg. If you saw it years ago, see it again.